Last Friday, the Office of the United States Trade Representative (USTR) published its annual National Trade Estimate Report on Foreign Trade Barriers. As usual, the issue of intellectual property (IP) protection stands at the top of the key trade barriers in China. This time, however, the report points out a different underlying reason for incessant online piracy in China: a bunch of censorship rules that prescribe content review of cultural products are “counterproductive”, because they create “conditions that allow for pirated content to displace legitimate commerce online”.

As in 2016, the report explicitly lists China’s Great Firewall, which carries out extensive functions of web filtering and blocking, as one of the major impediments to digital trade in China. The 2017 report also labels China’s Internet regulations including its new Cybersecurity Law as “restrictive and non-transparent”. In other words: controlling public discourse may be one motivation behind China’s censorship regime – the other may be to keep foreign competition at bay.

In fact, China has been adept at using its IP law as a chip to work on Sino-US relations to enhance the effect of its restrictive policies at home. In February, China awarded Donald Trump valuable trademark of his name days after he agreed to honor “One China” policy. Trump’s statement did seem to help assuage the tension across the Taiwan Strait for the time being. But many people see China’s recent decision as an exchange for Trump’s statement, which causes a bunch of ethical and legal concerns. Apparently, discussions about this sort of strategic “quid pro quo” will keep propping up in future Sino-US relations.

That China uses its IP law as a chip to leverage foreign relations against cacophony at home is not a new phenomenon. The most distinct case is the intricate relationship between copyright and freedom of expression. In my book Copyright and International Negotiations: An Engine of Free Expression in China?, I try to enunciate China’s systematic approach of using both copyright law and international negotiations as its legitimate basis to clamp down efforts of free expression. The subtlety of China’s unique censorship system provides a completely new understanding of the relationship between copyright and freedom of expression.

China’s notorious system of censorship is anchored in a variety of laws and regulations including its copyright law. In particular, the Copyright Act presupposes censorship as a precondition for granting copyright protection. This cultural policy, in conjunction with other censorship rules, targets both authors and publishers. Not only have numerous writers including a Nobel Peace Prize winner been jailed because of their allegedly “subversive” works, but publishers and editors are also invariably involved: just weeks ago, a Chinese editor was sentenced to five years for selling “forbidden” books from Hong Kong and Taiwan.

Moreover, China’s copyright law requires the international community to “cooperate” with its censorship, which not only bars domestic works dealing with “forbidden topics” from circulation, but also affects import of cultural products from abroad considerably. In 2016, Apple had to remove New York Times (NYT) Apps from its store in China due to censorship of foreign contents, while Chinese retailers could keep selling its products via alternative channels. This might cause huge loss of copyright income for the NYT. In practice, this is why, in numerous Sino-US trade negotiations, the US has always defined China’s censorship regime as a severe trade barrier, whereas China has developed its sophisticated approach of suppressing freedom of expression under its copyright law.

One of such disputes went to the WTO in 2009: the Sino-US copyright dispute reflects a fundamental clash between the cultural policy of a communist Party-state and a global free market. An eminent example of the market power that works against China’s censorship system is the film industry. In an earlier Global Constitutionalismarticle, I argued that different subsystems of international law including the world trade law might aggregate to have a boomerang effect against China’s censorship regime. Despite China’s de facto refusal to ratify the International Covenant of Civil Rights and Political Rights, the US continues to struggle against China’s Internet censorship in its IP-related trade negotiations with China.

Yet, the complexity of international relationships may also pull back such efforts: the US even withdrew from the Trans-Pacific Partnership earlier this year (see my recent China-File article). The colossal economic benefits of the Chinese market present another factor that may thwart efforts to promote freedom of expression. While IP income makes only part of the entire commercial profits of multinational corporations, it could even be difficult for Facebook to say no to China’s censorship and turn its back to a huge market like China. Also President Trump’s recent trademark disputes in China may aggravate this centrifugal force of China’s enforcement of its fledgling IP law, which assumes a political tinge by patronizing the Chinese government’s political allies and sanctioning its political foes. True, as a trade-IP-linkage, China’s copyright law has to nourish both domestic and international market needs, beckoning a spirit of free expression. But it is unlikely for China’s copyright law to remain an unalloyed commercial turf without facing formidable political challenges.

21 November 2017Discrimination, Copyright and EqualityWhy did I write Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled? Since losing my eyesight in 1993 in a train accident I wanted to enjoy reading equality […]